CA Unpub Decisions

The juvenile court continued Joseph R. as a ward (Welf. & Inst. Code, 602) after sustaining a petition alleging he possessed methamphetamine (Health & Saf. Code, 11377, subd. (a)). The court placed Joseph with his mother under supervised probation by the probation officer. Joseph appeals, contending the court erred because it relied on facts not presented at the adjudication hearing in making its true finding.
The order is affirmed.

Marvin Mendoza entered a negotiated guilty plea to voluntary manslaughter as a lesser-included offense of murder. The trial court sentenced Mendoza to the upper term of 11 years in prison.
The judgment is affirmed.

Jocelyn A. and L.H. are the parents of Jonathan, born February 2004, and Beverly, born March 2005 (together, children). In February 2005 Jocelyn tested positive for methamphetamine while pregnant with Beverly. She was counseled on the effects of methamphetamine use. At Beverly's birth about four weeks later, both Jocelyn and Beverly tested positive for methamphetamine.
The San Diego County Health and Human Services Agency (Agency) detained the children and initiated dependency proceedings under Welfare and Institutions Code section 300, subdivision (b).[2] At hearings in April and May 2005, the court determined that the children required the protection of the juvenile court, removed the children from parental custody, and ordered a plan of family reunification services. The Agency placed the children in the care of non relative extended family members (caregivers).
The judgments are affirmed.

Brian Thomas entered a negotiated guilty plea to grand theft from a person (Pen. Code,[1] 487, subd. (c)) and admitted he had served a prior prison term ( 667.5, subd. (b)) and had a prior serious/violent felony or strike conviction ( 667, subds. (b)-(i)). The trial court sentenced Thomas to a five year prison term as stipulated in the plea agreement. The judgment is affirmed.

Eric W. appeals an order in which the court issued a bench warrant for his failure to appear at a review hearing regarding his son, D.H. Court dismiss the appeal.

Robert R. appeals a judgment terminating his parental rights over Grace R. He contends that the juvenile court erred by declining to apply the beneficial relationship exception to termination ( 366.26, subd. (c)(1)(A)).Court affirm.

Raynard Lavelle Wells entered a negotiated guilty plea to possession of cocaine for sale (Health & Saf. Code, 11351.5) and admitted he had served a prior prison term (Pen. Code, 667.5, subd. (b)). The trial court sentenced Wells to the four year prison term stipulated in the plea agreement.
The judgment is affirmed.

A jury found defendant and appellant, Jason Scott Imbach (hereafter defendant), guilty as charged of aggravated sexual assault on his niece, N., a child under the age of 14 and more than 10 years younger than defendant, in violation of Penal Code section 269, subdivision (a)(1) (count 1);[1]committing lewd acts on N., a child under the age of 14, by means of force and fear in violation of section 288, subdivision (b)(1) (counts 2 and 3); knowingly exhibiting harmful material to a child in violation of section 288.2 (count 4); and possession of child pornography, a misdemeanor violation of section 311.11 (count 5). The trial court sentenced defendant on counts 2, 3, and 4 to the upper term on each count, those terms to run consecutively to each other, for a total determinate term of 19 years, to be followed by a consecutive indeterminate term of 15 years to life in state prison on count 1. The trial court also imposed a one-year concurrent term on count 5, defendants misdemeanor conviction.
Defendant raises various claims of error in this appeal, beginning with the assertion that the trial court erred when it denied defendants motion to retain new counsel and to continue trial. Defendant also contends that the trial court abused its discretion when it allowed the prosecutor to present evidence of an uncharged act in which defendant possessed pornography; that the prosecutor committed misconduct during trial; that trial counsel was ineffective; that the trial court committed prejudicial error by failing to give CALJIC No. 10.64 sua sponte; that the upper term sentences the trial court imposed on counts 2, 3, and 4 violate defendants Sixth Amendment right to have a jury determine all disputed factual issues; and the cumulative effect of the noted errors was prejudicial and deprived defendant of his right to a fair trial.
Court conclude for reasons we explain below either that errors did not occur or if they did they were harmless. Therefore, Court affirm the judgment.

Following a jury trial, defendant Richard Cal Elliott was convicted of commercial burglary. (Pen. Code, 459.) In a bifurcated proceeding, six prior prison term allegations ( 667.5, subd. (b)), including one that was also alleged to be a strike ( 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)), were found to be true. Defendant was sentenced to state prison for a total term of 10 years. He appeals, contending the trial court abused its discretion in denying his motion to continue and his Romero motion.

On March 13, 2006, defendant Danh Huynh entered a negotiated guilty plea to one count of assault by means likely to cause great bodily injury (Pen. Code,[1] 245, subd. (a)(1)), one count of animal cruelty ( 597, subd. (a)) and one count of dissuading a witness by force or fear ( 136.1, subd. (c)(1)). Defendant was advised that the maximum possible sentence was five years eight months in state prison. As part of his plea bargain, defendant waived his right to a jury trial on aggravating sentencing factors under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey(2000) 530 U.S. 466 (Apprendi). Subsequently, after argument regarding sentencing factors in aggravation and mitigation, the trial court sentenced defendant to the upper term on the animal cruelty count, and consecutive terms of one-third the midterm on the other two counts, resulting in the maximum possible sentence of five years eight months in prison. The court explained that the upper term was selected based on the level of violence that [was] demonstrated, the great bodily harm [inflicted and] the threat of great bodily harm. Defendant filed a timely notice of appeal. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)
Defendant contends that the judgment must be reversed because the trial court imposed the upper term based on facts neither admitted nor found by a jury, in violation of the Sixth Amendment. He also argues that his Blakely/Apprendi waiver was not a constitutionally valid or enforceable waiver of sentencing rights under Blakely or Apprendi, or, under the decision filed subsequent to imposition of sentence in the present case, in Cunningham v. California [(2007) 549 U.S. [127 S.Ct. 856] (Cunningham)]. The Attorney General argues that defendants claim is not cognizable on appeal absent a certificate of probable cause and that his Blakely/Apprendi waiver was valid in any event. Court agree and dismiss defendants appeal.

David A. Simon appeals from dismissal of this property tax refund action, following an order sustaining defendants demurrer without leave to amend. Court conclude the demurrer was properly sustained because Simon failed to allege property damage resulting from misfortune or calamity within the meaning of section 170, subdivision (a)(2) of the California Revenue and Taxation Code.

A modification decision.

Appellant pled no contest to charges in two separate informations filed against her in 2005; both informations alleged numerous narcotics violations. In sentencing appellant in both cases, the trial court placed her on probation for a term of three years. In May 2006, appellant was arraigned on charges filed in a third case, also involving alleged drug-related offenses, and was also charged with violating the terms of her probation in the two 2005 cases. After she admitted both of those violations, the court revoked her probation, sentenced her to two consecutive midterms on the two 2005 cases, and dismissed the charges in the 2006 information. Via this appeal, appellant claims the trial court (1) violated the federal Americans With Disabilities Act (ADA) in revoking her probation because she could not enter a particular substance abuse program due to a medical condition, (2) erred in sentencing her to the mid-terms, and (3) erred in imposing consecutive sentences. Court reject all of appellants claims and thus affirm the judgment, the sentence imposed, and the orders revoking probation.

Defendant Dennis Earl Hicks appeals from an order revoking his probation and a judgment executing his previously suspended sentence. His appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and, after being advised of his right to do so, defendant has filed no supplemental brief. Having conducted an independent review of the record, Court find no issue of colorable merit and affirm.